Complainant

Respondent

Anonymised Parties

A Special Needs Assistant

A School

Representatives

Andrea Cleere, SIPTU

Barra Faughnan B.L. instructed by Millet & Matthews Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00019748-001

13/06/2018

The complainant is alleging that she was discriminated against on grounds of disability in her working conditions. She further alleges that she was subjected to harassment on grounds of disability.

The Union on behalf of the complainant asserts that in January 2015, the school deviated from the process for referral to the Occupational Health Service (OHS) in that, a confidential email was sent to OHS by the School detailing that the complainant had surgery and that this was the second referral in a 12 month period. The email requested the following that OHS: “I ask that you please treat this email confidentially as X {my emphasis} is a very dedicated member of staff and would not be happy if she felt that we have such concerns about her overall health and fitness to work.”

The Union maintains that the complainant was accessed and deemed medically fit to safely continue at work and that there was no medical basis for this referral.  It was submitted that in May 2016, a non-mandatory discretionary referral was made to OHS by the School, the referral states; “I am aware that P should be referred for non-discretionary leave but I am referring her for discretionary sick leave”

The Union submits that this referral describes several provocative points regarding the complainant’s health. It advises how the Chairman of the Board of Management of the School met with Dr. A at a secondary school conference and disclosed medical details of the complainant to him. The referral specifically requests that Dr. A see the complainant. The Union contends that once again there is no basis for the referral; it is not appropriate for the respondent to speak with the doctor particularly in this scenario where all procedures are being bypassed.

The Union submits that the referral goes on to detail that the employee had medical issues such as nosebleeds, sight problems and how she is perceived as not being able for the pace. The referral further requests that the author speaks directly to Dr. A before he sees the Principal {my emphasis}. It was submitted that Dr. A assessed the complainant based on offering an updated opinion while the complainant was currently at work and Dr. A assessed that she was currently fit for work. The Union submits that the School again wrote to Dr. A in November 2016 seeking a further assessment of the complainant and highlighted the difficulties that the School has in making arrangements to cover absenteeism. It was submitted that the School does not apply the normal practice and procedure of making a referral and again refers to previous medical conditions. The Union asserts that the respondent continued to impute characteristics onto the complainant.

Dr. A carried out a 6-month assessment from July 2016 and noted that the complainant was at work and that she had steadily improved and identified that her absenteeism had been mainly from appointments in Cork. Dr. A considered the complainant fit for work and that she does not require any specific workplace accommodation other that the capacity to attend her medical appointments. It was submitted that in October 2017, another referral was again made a for the complainant to attend the respondent’s independent medical occupation health, the reason for this referral related to a medical procedure that the complainant had undergone over the Summer months and management had a concern about discounting holidays. It was submitted that the doctors notes show that Brother C (Chairperson of Board of Management) rang and spoke to Dr. B regarding the complainant’s appointment. On this occasion, Dr. B assessed that “X {my emphasis} is currently unfit to offer satisfactory service and reliable attendance due to multiple medical conditions.” It was submitted that the complainant continued to remain at work however and another referral was made for the complainant to attend Dr. B  (OHS) in December 2017. The Union states that while the complainant was at work during the period from September 2017 to January 2018, she carried out her duties as normal and did not require any special facilities or allowances.

It was submitted that Brother C (Chairperson) corresponded with Dr. A and Dr. B on 28 November 2017 seeking numerous clarifications regarding Dr. B’s assessment that the complainant is fit to attend work with restrictions. The Union states that Brother C also raises the issue of attendance and encloses the previous report from Dr. A in July 2016 and again raises the issue of the difficulties the School is experiencing in getting cover for absenteeism.

The Union maintains that the School received OHS’s report in January 2018 which detailed that the complainant was restricted to only working with non-wheelchair users without non predictable behaviour this would render her unable to offer flexibility in staff allocation. The Union submits that this assessment is incorrect as the complainant works with wheelchair users. The Union states that, on the return to school in January 2018 after the Christmas break, the Principal, Ms. D called the complainant into the office and advised that she was to leave the school premises immediately as the Principal had contacted the insurance company and confirmed that the complainant was not insured to be on site and ordered her to go straight away.

The Union states that the complainant’s own medical professionals had confirmed that she is fit for work without restrictions and support her participation in active employment, from a rehabilitative and mental health perspective. It was submitted that in June 2018, the complainant attended for a functionality capacity evaluation; this assessment concluded that the only part of her work that she cannot carry out is the walking distance for an SNA, however the Union submits that there is not a set distance for an SNA to walk. The Union contends that Ms. E who carried out the testing does not specify the distance, the Department of Education does not set a distance and the Health and Safety Authority does not qualify the distance that an SNA needs to be able to walk.

The Union states that a grievance hearing was sought on behalf of the complainant, correspondence was emailed on 14 March 2018 and a meeting was held on the 15 March 2018. However, a resolution of the issues did not materialise. It was submitted that for the last number of years, the School have actively pursued discretionary referrals to OHS. In this regard, the respondent has sought to speak directly with the Occupational Health Physician on more than one occasion, they have sent emails and letters giving detailed background of perceived concerns regarding medical issues and imputing these protected characteristics onto the complainant.

It was submitted that the complainant has always attended the Occupational Health Service referrals, has applied the sick leave policy correctly and the only reason restricting her from work currently is that she cannot walk the distance required for an SNA — the answer to which does not exist. The Union states that Brother C, in his letter of 31 January 2018 to OHS, is aware that the complainant has an appointment on 5 February 2018 and requests an update as soon as possible after the appointment. The Union contends that Brother C also makes a number of references to the letter the Principal wrote on the 28 November 2017 to Dr. B but we are now aware that he authored said letter.

The Union states that discrimination is less favourable treatment. A person is said to be discriminated against if s/he is treated less favourably than another is, has or would be treated, on any of the nine grounds. The Union argues that the treatment of the complainant is expressly linked to her health issues from this, the inference of discrimination can be drawn. The Union states that disability shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person. The Union asserts that the complainant was able to carry out her work efficiently, she was never issued with a warning of disciplinary sanction of any kind. The Union maintains that the respondent repeatedly and actively referred to some of her medical conditions even though they had not caused her absence or difficulty. The Union argues that the protected characteristic was imputed onto the complainant raising sufficient significance to raise a presumption and establish a prima facie case.

The Union submits that direct discrimination is described as one person being treated less favourably than another. It was submitted that the complainant was referred to OHS for unjustified reasons and that her colleagues were not treated in the same manner. The Union states that the comments which were made directly about the complainant to OHS regarding her sweating profusely, not being able for the pace etc are direct comments about the complainant’s characteristics and appearance which were humiliating and degrading and have affected her dignity.

The Union submits that Harassment is defined in section 14A (7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. A single incident may constitute harassment. The Union asserts that unreasonably changing a person's job is less favourable treatment. The Union argues that the complainant is competent and capable of carrying out the tasks in classroom 1 which is where she had been working. The Union argues that by constantly referring the complainant to OHS, the respondent has breached the complainant’s terms and conditions of employment. The Union states that OHS issue reports which are for consideration by the employer. It was submitted that in October 2017, the complainant remained at work and there had been no change in her medical conditions. When she returned for the start of term in January 2018, her employer advised that she had to leave the premises immediately.

The Union submits that the respondent pursued what was an industrial relations perceived staffing issue in a bullish manner which cannot be justified as per its cited obligation under Section 8 of the Safety, Health and Welfare at Work Act 2005. It was submitted that consultants who are experts in their respective fields advised that the complainant is fit for work however this did not bear any weight in considering her return to work. The Union states that the complainant is fiercely distraught over the way she has been treated over the last number of years specifically her absence from work which has been particularly difficult for her both financially and emotionally. The Union argues that the respondent actively pursued her vigorously regarding her health issues which is tantamount to harassment.

Testimony of Complainant

The complainant states that she loves her job at the School. She states that she has been working with kids with special needs for over 34 years. She finds her job very rewarding. She states that she hopes that the work she does makes some kind of reward to the children and that she is there to help them move on to the next stage of their lives and that through her skills, she can help them progress into the next adult stage of their lives. The complainant states that she would not have fought so very hard to get her job back if she did not like it. 

The complainant states that in November 2006 she was diagnosed with benign intracranial hypertension which is a build up of fluid on the brain and she had to get a shunt inserted. She states that in 2009 she got a bad reaction where the shunt leaked and caused bacterial meningitis and it resulted in her losing the sight in one eye.  The complainant states that she had to get a number of lumbar punctures done and different shunts inserted over the years. In 2015 a different type of shunt was inserted and this shunt is still in place and is working well. The complainant states that while she has had to undergo many procedures with resulting absences and recovery periods, she always complied with the respondent’s policies and procedures.

The complainant states that in terms of referrals to OHS (Occupational Health Service) there were numerous occasions she was not informed of the reasons for said referrals.  She states that she would be called out of the classroom and told that she would have to go to OHS on such a day or if she was absent, she would get a letter from the School to state that she was being referred to OHS on such a day. She stated that in July 2016, she met with Dr. A of OHS and they tried to come up with a solution so she would not miss so many days out of School, though she states at that time, she was allowed leave school at 11 am and that would be considered a half day. Dr A suggested that the complainant try and make her appointments for Cork (where she was attending a Consultant)  for the afternoons and if she had to get a lumbar puncture done to try and get it done during Summer or Easter holidays or on annual leave time. The complainant states that she came back and spoke to the Principal about what Dr. A had suggested but within two weeks the rules had changed and now its no longer considered a half day leaving at 11 am but it was changed to 1.30 pm. The complainant states that this ruled her out as she would not make the appointments in Cork in the afternoons so would be back missing her days for appointments and that would mean another day out of School. The complainant submits that this change implemented by the respondent contributed significantly to her sick leave accumulation.

The complainant states that when she came back in late August at the start of term, she was in the corridor chatting, the Principal was present and the complainant mentioned that she had a lumbar puncture done over the Summer holidays and within two weeks she received a letter from the Department of Education to state that her Summer holidays were no longer being paid for because she had a procedure done and was on sick leave. The complainant said she had to appeal that decision, get letters from her GP and consultants in Cork and the Department of Education’s decision was overruled and her Summer holidays were allowed. The complainant states that she is with the School over 30 years and in all that time she was aware of no process following Easter or Summer leave etc where she was requested to fill out a health assessment form following illnesses or breakages in leave.  

The complainant was referred back to OHS in October 2017, she was given the impression by the Principal that it concerned Dr A’s suggestions which were discussed in July or in relation to discounting of leave over the Summer but the complainant was puzzled as she said the latter issue had already been sorted out. However, when she met with Dr. B (OHS) on 24 October, issues about her hips were brought into conversation and about her excess sweating in the classroom. The complainant contends that this was the first time in all of the times she attended OHS that her hips were ever brought into conversation. The complainant said Dr. B made a comment about the way she walked and the way she limped and her excess sweating. In relation to the latter, the complainant tried to explain to her that there were quite a lot of heaters in the classroom and that she was at that stage of life where she was starting to go through the change of life. But much later she found out it was a side effect to one of the medications she was taking. The complainant states that Dr. B had to get that information from the School or management as the day she visited Dr. B she was not sweating as it was freezing cold on that particular day.

The complainant states that she was referred back to OHS in December 2017, on that day Dr. B read out an email from her laptop mentioning issues with her hips, excess sweating etc and the complainant is of the view that the email came from management at the School. The complainant states that a couple of days later she approached the Principal about the matter and the Principal stated it did not come from the School as all they do is fill out the online OHS referral form. The complainant states that she was given no reason for the referral to OHS in December 2017 and in fact was in School working away and there had been no change in her medical condition. The complainant states that she felt as if she was being harassed and scrutinised all the time even after so many years of dedicated service to the School. The complainant states that she gleaned this after seeking a data access request and upon reading reports of the emails, notes regarding phone calls that were made behind her back and conversations that were made behind her back. The complainant states that upon reading the material, it made her feel worthless.

The complainant states that there were no issues with her work and she was never subjected to any disciplinary issues. The complainant states that there was one issue that she brought to the Principal’s attention when she was putting on one of the child’s coats she pulled him forward and he let out a scream, she brought this to the attention of the Principal the following morning. The complainant states that the child had a rod in his lower spine and a couple of weeks later his own GP did the same. It turned out that there was a screw loose in the lower rod that needed to be fixed and that was what was causing the problem.

The complainant states that in January 2018 it was 1.15 pm and she was feeding one of the kids in the classroom; the Principal came up to her and asked her to come to the office. The complainant queried this and the Principal told her that OHS said that she was not fit to work and the insurance company said she was not insured to be on the premises and to leave the School immediately. The complainant states that she broke down in tears and asked the Principal what was the position regarding her pay. She states that the Principal assured her she would be on full pay and that hopefully it would be all sorted out by Easter. The complainant states that the OHS report said that she was unfit to work in the three wheelchair classrooms but the complainant states that she was puzzled by this as she had always worked in the three wheelchair classrooms and therefore the School would have known that the content of the report was incorrect.

The complainant states that the School suggested she undertake a Functional Capacity Evaluation test as she was informed by the Principal that every new staff member coming through the door had to do the test. The complainant states that in fact she was the only member of staff requested to take the test. The complainant asserts that there was a document sent to OHS and in a meeting with Dr. A, he produced it as the complainant’s contract of employment. It turned out that the document was in fact compiled on each class on the basis of a submission which was sent to the Department of Education to look for extra staff.

The complainant states that having got her file as a result of a data access request there are various pieces of correspondence that she was not furnished with and had no knowledge of. The complainant refers to a letter sent by Brother C, Chairperson of Board of Management on 14 October 2016:

“Dear Sir,

I write concerning the attendance record of X SNA {my emphasis} employed by Y School. Y caters for pupils with severe and profound special needs. The records show that X has accumulated 313 sick days over the period 13 September 2012 to 14 September 2016. X has accumulated 10 sick days since the school reopened on 1 September last.

X has a diagnosis of benign intracranial hypertension. The Board of Management granted X critical illness status in March 2015. This decision was arrived at following legal advice. OHS {my emphasis} wrote in a letter dated 17 February 2015 that she did not meet the criteria for critical illness. X’s extensive but intermittent absence from work is proving difficult to manage. It puts continuous pressure on in-school management to find supply cover on the days she is absent and/or she has to leave work early due to ill health.

There are some issues regarding her interactions with colleagues when X is in school on days when she is not at her best. On Thursday 6 October 2016, while X was putting on a coat of a pupil, he cried aloud. It appears that she was dressing him in a manner inappropriate to his needs. This pupil has not attended school since that date. It is having an impact on her students with special needs who require a constantly present figure in the classroom to enable them to flourish to the greatest extent possible. Given the nature of the school, all pupils are classified as having severe and profound special needs. It is, of course, reasonable to expect an employee provides regular attendance to meet the needs of the pupils in the school.

The school has written reports from OHS {my emphasis} dated 6 May 2015, 15 June 2015, 7 December 2015, 30 March 2016 and 6 July 2016. I enclose a copy of a report dated 6 July 2016. In-school management has now reached the point where it no longer has the capacity to support the pattern of absence that has been evident in the school year. I await your advice on a sensitive matter. In the interests of confidentiality, I would appreciate if you could forward any correspondence to me at my home address …My Phone number is …Should you require any factual information, please contact D {my emphasis}, School Principal on the above number.”

The complainant makes the point that it was never brought to her attention that there were any difficulties with her colleagues. She states that she finds the contents of the above letter very hurtful particularly the issue that she would purposely hurt a child. The complainant stated that she treats the children like they are her own and has their best interests at heart.

The complainant also states that she felt harassed in the context of Brother C coming to her home following her data access request for her personnel file and any data relating to her. The complainant states that it was coming up to the deadline for same and Brother C rang the doorbell. It was coming up to the Easter holidays. He rang the doorbell on a couple of occasions, she didn’t answer it and he went away but he came back after five minutes and persistently rang the bell for another 10 minutes before finally putting the package through the letter box and then left. The complainant states that she felt very intimidated and upset by this encounter and that it was unnecessary as she could have arranged for someone to pick the material up from the school.      

The respondent submits that equality claims must be submitted within six months of the events complained of, or within six months of the most recent event where it can be established that there is a continuum.  The respondent states that the complainant has referred to incidents going back to 2015. The respondent submits that the correct approach for the WRC is to consider the six months prior to the complaint being submitted (in June 2018) and, only if it finds a contravention of the equality legislation within that period, to go back further and investigate whether or not there is a continuum.

The respondent states that the complainant also refers to events which occurred after the issuing of the complaint (in June 2018). In this regard, the respondent submits that these events do not form part of the complaint. It states that the complainant is not entitled to seek to obtain compensation or other relief arising out of events post-dating the complaints form. The respondent submits that the Adjudication Officer is, however, entitled to consider matters outside of the time period coming within her jurisdiction (either prior to or subsequent to the complaint) for the purposes of considering whether any such material is probative, or corroborative, of allegations coming within the appropriate time period. 

The respondent states that the parameters of jurisdiction in this regard were set out by McKechnie J in the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40, as follows:

“46. The critical issue of substance which remains alive between the parties is whether the legislative process demands, howsoever achieved, that the incident or series of incidents in respect of which redress can lawfully be sought must be notified within the statutory time limit, obviously with due regard to the date of occurrence, if that should be appropriate. If it does, is it correct to say that any matter notified outside of this period whether or not of the same general nature as those asserted within the period, cannot of itself constitute an act of discrimination? It follows, if such be the case, that an equality officer would have no jurisdiction to investigate such matters for that purpose. Certainly, if this analysis is correct, any claim which does not meet this condition precedent cannot be admitted as such.

47. However, even if that proposition is correct, the same does not mean that such evidence cannot be received in any circumstances. That is not the situation. If such evidence is tendered for a reason or purpose not contemplated by the limitation period, then it will not be declared inadmissible on that ground. The instant case is a good example of the distinction which I make. It is accepted by the VEC that the historical evidence may be offered for a purpose or reason which does not offend section 77 of the 1998 Act. Such a purpose might, for example, be by way of background, or to enlighten or inform the content of the EE1 form. In fact, any evidence which is relevant to and has probative value in respect of any fact in issue in relation to matters captured by the complaint, if timely made, could in principle be admitted. It is to prevent the use of such evidence to ground a discriminatory act for redress purposes which s.77 is focused on.”

The respondent states that the School in question is a co-educational special School catering for children with severe or profound general learning difficulties. It was submitted that the School currently has 38 students enrolled and has seven class teachers and sixteen Special Needs Assistants, together with the Principal and two Nurses.  Children enrolled in the School are aged between 5 and 18 and the vast majority of them have serious mobility issues with somewhere in the region of 50% of students in wheelchairs.   As the School caters for children with very serious learning difficulties and mobility issues, there are two full-time Nurses on site.

It was submitted that the School has a small number of pupils and a high number of staff. Its pupils present with complex needs and deficits, as well as, in some instances, unpredictable, challenging and occasionally dangerous behaviour. There is a high physical input to the job of an SNA tending to such pupils. There is a further need for, insofar as possible, continuity in relation to staffing and/or procedures to ensure that the pupils, all of whom are particular and special needs, are catered for as well as possible.

It was submitted that as with any School, the respondent has layers of inter-weaving responsibilities, including legal responsibilities, to its staff and pupils and it must also obey the rules and regulations promulgated by the Department of Education, which regulates the terms and conditions of staff within the School, pays the remuneration, and prescribes, inter alia the conditions for management of and payments in respect of sick leave.

The respondent states that the complainant has advanced a claim of both harassment and discrimination.  The respondent states that it is hard to delineate the extent to which the complaints made in the written submission seek to advance one or other claim or both. The respondent submits that from the panoply of individual matters mentioned, however, the following allegations can be gleaned:

(i)               The respondent has repeatedly (and by implication either unnecessarily or wrongfully) referred the complainant to Occupational Health for assessment as to her fitness to work (in circumstances whereby her colleagues were not treated in the same manner).

(ii)              These referrals were wrongful and/or amounted to harassment because, either there was no basis for the referrals or the complainant was being deliberately “targeted” or “pursued” by means of the referrals.   

(iii)            The respondent wrongfully disregarded the complainant’s own doctors in relation to her fitness.

(iv)            In making the said referrals, the respondent breached the appropriate procedures and protocols.

(v)             Comments were made about the complainant’s symptoms which constituted attacks upon or undermining of her dignity.

(vi)            A single reference is made to changing the complainant’s job or duties.

The respondent submits that to the extent they can be delineated, all of the complaints are rejected by the respondent for the reasons set out as follows. The respondent submits that the complainant in her submissions has hugely understated the extent of her medical history and sick leave record and its implications both for her and for the School in terms of managing the situation. She has also ignored the terms and conditions applicable to the management of the situation under her contract and the prevailing circulars promulgated by the Department of Education.

The respondent states that the complainant has had a protracted period of extensive, sporadic, and unpredictable sick leave over the past 10 years. The complainant has been on sick leave since January 2018, following Occupational Health (OHS) certifying her as being unfit for work, something she disputes. However, the earlier periods are worth considering (not least because the complainant has raised incidents going back as far as January 2015). The respondent states that:

•        In the period between the 6 January 2014 and the 10 January 2018, the complainant had accrued 365 days of paid sick leave. 

•        In the period between the 19 October 2012 and the 20 October 2016, the complainant accrued 316 days of sick leave

•        Between December 2011 and December 2012, she accrued 61 days of paid sick leave and 3 days of unpaid sick leave. 

•        From 11 November 2009 to 10 November 2010, the complainant accrued 29 days of sick leave. 

•        From the 14 September 2008 to the 16 October 2009, she accrued 83 days of paid sick leave and 33 days of unpaid sick leave.  

•        From February 2007 to 2008, the complainant accrued 78 days of paid sick leave. 

•        From September 2006 to December 2006, the complainant accrued 111 days of sick leave

•        From the 22 February 2006 to the 7 June 2006, the complainant accrued 32 days of sick leave.

The respondent asserts that in addition to the foregoing, there have been many number of occasions in which the complainant had to go home having come to work because she was feeling unwell; these were not counted as part of the sick leave entitlement because the complainant attended for work. (The rules in relation to these matters altered in relation to the time for which a staff member had to stay in school before leaving in order to have the day not count as part of sick leave).  The respondent contends that, in any School, having to constantly chop and change between staff and/or get substitute SNAs on a regular basis is particularly disruptive and challenging in terms of managing the School environment and the burden on other members of staff, having regard to the requirement of proper delivery to students with very particular needs.  For a School such as this one, it is even more disruptive. 

It is not contested that the complainant has suffered serious ill health over a number of years which has had a complicated, varied and unpredictable manifestation. Occupational Health has advised that the complainant has suffered, at various times, from:

•        Unspecified “medical condition” and “surgical procedure” (see report of the 18 December 2012)

•        Surgery to insert shunt to remove fluid from the brain (See email from Principal to Occupational Health - 6 January 2015)

•        Benign inter-cranial hypertension (see Occupational Health report of 6 July 2016) 

•        Intracerebral venous blood clot (see Occupational Health report of 17 January 2017)

•        Alertness and lack of sleep problems (see Occupational Health report of the 26 October 2017)

•        Multiple medical conditions which result in constant headaches and sleep deprivation (see Occupational Health report of the 22 December 2017)

•        Constant headaches, sleep deprivation, right sided visual loss and mobility issues (See Occupational report of 20 February 2018) 

•        Inability to stand or walk constantly throughout the working day (letter from Dr. A of 23 July 2018)

The respondent submits that the complainant’s submissions raise the provisions of the Safety Health and Welfare at Work Act, 2005. It was submitted that the obligations of employers under the said act are set out at sections 8 and 23 thereof.   The respondent submits that it is these self-same conditions and the complainant’s repeated prolonged absences which triggered the Employer’s obligations to consider the complainant’s fitness to work in the specific context of her work environment and to make referrals to occupational health specialists; obligations largely mirrored by under the Sick Leave circulars. The respondent asserts that in this regard, the referrals of the complainant in fact show the respondent as fulfilling its duties both to the complainant and to the other members of staff and pupils. 

The respondent states that the complainant is a hugely valued member of staff and a dedicated worker with firm long-term friends amongst her colleagues. But the reality is that her protracted sickness history has created and continues to create organisational responsibility and management problems for the school. It also caused personal difficulties for the complainant, which the respondent does not seek to minimise. However, the respondent must have regard to all of its obligations in managing the situation.  The respondent states that at paragraph 3.6 of the complainant’s submission, it is contended that: “X’s Employer {my emphasis} pursued what was an industrial relation perceived staffing issue in a bullish and (sic) manner which cannot be justified as per their cited obligations under section 8 of the Safety, Health and Welfare at Work Act 2005.”

The respondent submits that this grossly distorts the position. The respondent has a whole spectrum of obligations to ensure that the workplace is fit for all of its employees and its students and that its employees are fit for work in this workplace.

The respondent asserts that the complainant is employed as a Special Needs Assistant on foot of a contract dated 30 September 2005. This contract was in the form required by the Department of Education and Skills pursuant to DES Circular 15/05. The respondent states that amongst the standard terms of employment set out therein, the contract set out:

a)     the tasks required of a Special Needs Assistant and 

b)     the sick leave provisions for Special Needs Assistants   

The respondent submits that the tasks include physical tasks, such as toileting and assisting the children in and out of transport which would require the lifting and manual handling of children of various ages. These duties were further varied by the DES and detailed in Circular 30/2014. Page 5 of Circular 30/2014 sets out the Primary Care Needs with which SNAs must assist and lists further duties including assistance with mobility, intervention with a pupil, the lifting and moving children etc. The respondent states that the complainant’s Terms and Conditions of Employment as an SNA are set and are subject to variation by the Department of Education and Skills pursuant to Section 24(3) of the Education Act 1998 (as amended). 

Section 24(3) of the Education Act states 

“The terms and conditions of employment of the teachers and other staff of a recognised school, appointed by the board and who are, or who are to be, remunerated out of monies provided by the Oireachtas, shall be determined from time to time by the Minister, with the concurrence of the Minister for Public Expenditure and Reform”.  

The respondent states that the particular provisions of relevance in this matter relate to the manner in which the Minister for Education and Skills sets the sick leave provisions for Special Needs Assistants.  These provisions are set down and promulgated by Circular of the Department of Education and Skills, in particular in this case Circular Letters 15/05 and 54/2015.  

The respondent asserts that as set out on the first page of Circular 54/2015 thereof “this circular supersedes all previous circulars, memoranda, rules and regulations in relation to sick leave” and as such varied, by Ministerial Order, the Contract of Employment of the complainant.  DES Circular 54/2015 contains a large number of important directives to the employer about sick leave and how it will be dealt with.

(i)               At paragraph 2.1 it highlights that an employee will be entitled to a maximum of 183 paid days of sick leave in a rolling four year period. 

(ii)             An employee is equally entitled to a total of 365 paid sick leave under the Critical Illness Leave provisions in paragraph 3.

(iii)            Paragraph 5 sets out the entitlement to Temporary Rehabilitation Remuneration which will not exceed 18 months in the case of ordinary illness or 24 months in the case of critical illness.  TRR is normally paid at the rate of 40% of ordinary pensionable pay.  Having exhausted the maximum period of paid sick leave and/or TRR, an employee can receive unpaid sick leave. 

(iv)            At all times however, it must be noted that the payment of sick pay regardless of the nature thereof requires frequent referrals to the Occupational Health Service (OHS) contracted by the Department of Education and Skills.  Paragraph 14.1 highlights that “where reasonable concerns exist as to the capacity of the special needs assistant to undertake his/her duties in a manner that is safe for both the special needs assistant and students” the employer must refer the SNA to the OHS.  The paragraph goes on to state “It is a requirement of the sick leave scheme that all participants and beneficiaries of that scheme abide by the medical assessment of the OHS”. 

(v)             Paragraph 14.3 of the Circular states that there are two types of referral to the OHS.  Any employee who has four weeks continuous accumulative sick leave absence in a rolling 12 month period must be referred to the OHS on a non-discretionary basis.

(vi)            Where an employer has “reasonable concerns relating to their medical fitness for work” an SNA may be referred on a discretionary basis.

(vii)          As paragraph 15.3 highlights where a SNA has been absent on paid sick leave for 4 or more continuous weeks, or absent for any period of TRR/unpaid sick leave or a shorter period confirmation of fitness to return to duties must be obtained by the employer from the OHS. 

(viii)         The basis for non-discretionary and discretionary referrals are further set out on page 5 of the Standard Operating Procedures Manual for Boards of Management.

The respondent states that clearly, aside from the need to comply with the provisions of the relevant DES Circulars, in order to discharge these obligations with an employee who had a series of serious medical conditions resulting in prolonged absences in a workplace requiring physical fitness and strength, the employer would be required to: (a) ensure that the employee was medically fit to undertake her work, (b) ensure the occupational medical practitioner had an appropriate understanding of the particular rigours and demands of the workplace (c) ensure that the employee was medically reviewed at frequent intervals.

The respondent states that its actions in this case were nothing more than complying with these obligations. The respondent submits that the vast majority of the referrals to OHS were mandatory, non-discretionary referrals. The respondent states that circular of 2015 and its predecessors provided that once an employee hits a certain amount of sick days, whether sequential or considered cumulatively (at present this is four weeks) the employer School is legally obliged to refer the employee concerned to OHS.

The respondent states that it fully accepts that many referrals have been made to OHS in respect of the complainant but in most cases it had no choice. The respondent maintains that in her submission, the complainant does not distinguish in a number of instances between mandatory and non-mandatory referrals. The respondent submits that as set out above, in addition to mandatory referrals, an employer may also make a referral where they are concerned about the employee’s fitness and other aspects in relation thereto. Some of the referrals fall into this category.  At paragraph 2.2 as per her submission, the complainant refers to the referral in 2016 as a discretionary referral. The respondent submits that as the referral notice itself makes clear, it is a discretionary referral made in circumstances whereby the Principal did have concerns about the complainant’s capacity to work. However, it is also made in circumstances of a mandatory referral would have been appropriate in any event.  The respondent asserts that given the wording of 14.1 of the Circular, whilst some referrals may be regarded as discretionary, arguably, where there is a safety concern, this also requires a mandatory referral.

In relation to referrals to OHS in 2016, 2017 and 2018, the respondent states that there has been an acceleration in the referrals and more detail in the examination but these have been prompted by the response from OHS itself:

(i)               In 2016, OHS identified that the concept of fitness to work also had to be allied with the capacity to give regular attendance, which had always been the difficulty with the complainant. 

(ii)              At the end of 2017, OHS confirmed that the complainant was fit to work “with restrictions” – clarity as to the nature of these restrictions was then sought.

(iii)            In January 2018, OHS certified the complainant as unfit for work (the complainant disputes that this is accurate, but her submissions in this regard again mis-state what is in the relevant reports).

The respondent states that contrary to the complainant’s assertions, the respondent went to great lengths to try to clarify the position of the complainant both with OHS and with her representative. The respondent asserts that it is contended by the complainant that there was no basis for various referrals, and now that there was no basis for a finding that she was unfit in the reports. The respondent maintains that this is incorrect when the reports are properly considered. For example at paragraph 2.10, the complainant refers to the OHS report “from January 2018” as referring to her not being able to give flexibility because she was restricted to only working with non-wheelchair users. The complainant says this is an incorrect assessment “because she only works with wheelchair users”. The respondent asserts that what the report (which is dated 22 December 2017 but was not received until early in 2018) actually states is that the complainant was unfit to work with wheelchair users and/or agile or flight risk pupils.

“X {my emphasis} remains unfit due to multiple medical conditions to work with the 50% of the children in the school who are wheelchair users and also unfit to deal with children who are agile and at risk of “flight” behaviour. Since being restricted to working only with non-wheelchair users without non-predicable behaviour would render her unable to offer flexibility in staff allocation required by the school, regrettably she appears medically unfit to offer satisfactory service and reliable attendance for the foreseeable future”

The respondent submits that the complainant impugns the occupational Functional Capacity Evaluation (FCE) furnished in July 2018 (but only received by the school in 2019, despite repeated  correspondence to OHS and to the complainant looking for same) by reference to the Department not specifying any “walking distance” which she cannot achieve. The respondent maintains that while, as set out above, this report does not form part of the claim as it postdates the complaint form, a number of matters need to be said about this assessment: (i) The commissioning of the FCE is evidence of the respondent and/or OHS seeking to conduct extensive enquiries in relation to issues with the complainant’s capacity directly referable to the job specification and duties. That is what they are meant to do. (ii) There is a clearly detailed job and duties analysis which has been done. (iii) What the assessment refers to as “walking constant” requirement of huge elements of the job. This is not a question of a specific distance but the fact that the job requires the SNA to be ambulatory and on her feet for pretty much the entire day. In the professional opinion of the assessor, the complainant is not fit to carry out those duties.

The respondent states that the complainant refers in her submission to how her own medical professionals “confirmed that she is fit for work without restrictions”; these medical professionals were her own neurological and orthopaedic specialists. The respondent states that as can be seen, these are very brief reports which do not refer to the duties of the job. 

The respondent states that it is very important not to confuse the role of an occupational specialist and treating practitioner. It submits that as highlighted by Judge Ní Raifeartaigh in Bus Atha Cliath/ Dublin Bus v Claire McKevitt [2018] IEHC 78, the job of an occupational specialist is to come to a “multi-factorial conclusion rather than in relation to one particular issue alone”. The respondent asserts that the complainant’s doctors very brief reports were submitted to OHS in March 2018 (immediately upon their being given to the employer).  OHS’s role, at that point, as identified by Judge Ní Raifeartaigh was “to evaluate” the opinions expressed by the employee’s doctors. Unlike the treating and diagnostic role of the complainant’s doctors in respect of their various specialisms, OHS’s role was to ascertain, on a holistic basis, if the complainant was fit to return to work. OHS had certified the complainant as being unfit to work in February 2018 and the submission by the respondent of the complainant’s doctors’ report did not change OHS’s view.

The respondent states that it is not clear whether the complainant ever submitted the OHS reports (or the FCE report) to her treating doctors to see if they had a different opinion or take issue with the OHS reports.  However, the respondent states that it was obliged to refer the matters to OHS, which it did, and as soon as it received the complainant’s medical evidence, it also furnished same to OHS.  The respondent asserts that the complainant may well disagree with the conclusion, but the respondent has fully fulfilled its duties in this regard.

The respondent refers to some factual issues raised by the complainant submissions and responds as follows. In paragraph 2.1 of the complainant’s submission, it is alleged that there was no “medical basis” for the referral to OHS in January 2015. The respondent states that on the contrary, between the 15 September 2014 and the 9 January 2015, the complainant accrued 34 days of sick leave. As set out in the OHS Standard operating procedures which pertained at the time, once an employee is absent for 28 days cumulatively in a 12 month rolling period, they must be referred to OHS.  The respondent submits that it is not accepted that there was any “deviation” from practice in this regard. It states that while the complainant may find the content of the email unpalatable, the Principal’s concern in relation to the complainant’s capacity and her welfare was entirely legitimate and genuine.

The respondent submits the following in relation to the complainant’s submission in respect of paragraph 2.2 regarding the May 2016 “discretionary referral”:

(i)               As set out earlier, a mandatory referral would be inappropriate in any event at this stage.

(ii)              It is the case that this referral refers to the complainant’s symptoms and a reference to her “not being up to the pace”. First, it is essential in making a referral that proper relevant information be given to OHS. While again this may be distressing for the complainant, the Principal was referring to comments made by other staff members, including friends of the complainant and colleagues who were concerned both for her and about her. The Principal’s response to these matters was entirely appropriate. She referred the complainant to OHS for professional assessment and advice.  

The respondent submits that it is not accepted that any of these comments were attacks on the complainant’s dignity or amount to harassment in any way shape or form.

(iii)            The Chairman of the Board of Management did meet with Dr. A and did refer to the complainant as discussed in the referral email. However:

(a)   The occasion was meeting at an OHS “clinic” which it runs at conferences to allow school managers to discuss any issues of concern.

(b)   The Chairman did name the complainant but did not give any details of a medical condition. Rather, the primary concern of the Chairman in relation to this matter was the extent of the complainant’s absences and his concerns that she would be in a position to avail of the critical illness extension lest she end up on unpaid sick leave, and in circumstances whereby the Department of Education did not appear to being cooperative in this regard.

The respondent states that the complainant’s submission repeatedly alleges that the School deviated from the “practice of and procedure of making a referral” while blithely ignoring the OHS Standard Operating Procedures and the employer’s obligations under the circulars and the 2005 Act.  The respondent submits that the reference in this paragraph to “imputing characteristics to X” {my emphasis} is fundamentally misconceived. The respondent maintains that the referral in December 2017 was necessitated by the fact that OHS, in their report of the 26 October 2017 ticked the box on the form that said “Fit to work with restrictions” but did not state what those restrictions might be. The respondent submits that OHS subsequently stated that several paragraphs of this report were missing and issued a revised report with their letter of 20 February, 2018 and the revised report is dated 24 October 2017. The respondent states that while the complainant was of the view that she was fit to work during this period, the OHS report suggested otherwise and a further referral was necessary to allow OHS advise on what “restrictions” were necessary. At the subsequent review in December 2017, OHS certified the complainant as being unfit to work due to “multiple medical conditions”.

The respondent refers to paragraph 2.10 of the complainant’s submission where the complainant raises an incident in January 2018 which she plainly found distressing. While the respondent fully understands how she would find it distressing, that does not mean that there was any breach of legal duty or otherwise to the complainant, whether under equality legislation or otherwise.  The situation was that the OHS report of 22 December 2017 (referred to above) which certified her as being unfit arrived during the Christmas holidays and was on the Principal’s desk on the first day of term. When the complainant attended for work, the Principal was in the position of having a report which said she was not fit to do so. The respondent states that the Principal consulted the insurer of the school which said that in those circumstances, the complainant should not be on the premises. The respondent states that the above incident has to be taken in the context of the duties owed by the School. Given the medical opinion which was in the possession of the Principal and the advice of the insurers, the Principal had to avoid the risk of any form of incident involving the complainant and or any pupil in respect of which the complainant, the pupil or the school will be uninsured.

The respondent states that the reference in paragraph 2.12 of the complainant’s submission to the Functional Capacity Evaluation (FCE) report, postdates the receipt by the WRC of the Complaint Form and can therefore form no part of the complainant’s claim. Without prejudice to this, the FCE was carried out to ascertain conclusively if there were any reasonable accommodations which the respondent could make to facilitate the complainant’s return to work. The FCE concluded that the complainant’s physical fitness was not sufficient for her to work in any of the rooms in the School.

The respondent submits that neither the Claim Form nor the Submission gives any indication as to the particular section of the Employment Equality Act 1998 that was purportedly breached.  The respondent contends that, in the normal course, claims issued under Section 77 will normally clarify the manner in which discrimination has allegedly occurred in contravention of the Act.  The respondent states it is not clear if the complainant is stating that she was discriminated against in breach of Section 8(1) of the Act, in relation to her conditions of employment.  If this is the case, as set out above, the Circulars in relation to sick leave are of universal application and the provisions thereof were implemented in relation to the complainant as they would have been in relation to any other employee.  The respondent states that the complainant has not pointed to any difference as to how she was treated as opposed to any other employee.   

The respondent states that in her submission, the complainant states that she was “referred to OHS for unjustified reasons and that her colleagues were not treated in the same manner.” It states that the complainant bears the burden of proof and she has not identified any colleague or colleagues as appropriate “comparators” for the purposes of the discrimination claim which she appears to be making.  The respondent states that at a minimum, the complainant must identify specific persons or persons who are in equivalent situations but who received more favourable treatment, or who would have received more favourable treatment. The complainant does not even attempt to go down this road at all, nor to produce any semblance of evidence for the purposes of grounding this aspect of the claim.  The respondent states that as a matter of law, the failure to nominate any “comparators” and/or to make any case in relation to comparative treatment, is fatal to the discrimination claim.

The respondent maintains that in reality what the complainant has a grievance about is the manner in which the respondent managed her sick leave and other illness and/or issues relating to fitness to work or otherwise. The respondent contends that what the complainant does not seem to appreciate, is that the respondent has an obligation to manage the situation and that the situation required significant management.  It placed significant stresses upon the school and resources and its staff. The reality of managing the situations and the roles of the various parties in these situations is clearly set out by Ni Raifearthaigh J in the McKevitt case referred to above.

The respondent states that it would appear to it that the complainant is really making a case that she has been “harassed” in the literal sense of being constantly referred to OHS, rather than being subjected to harassment as defined by the Employment Equality Acts.

The respondent states that the relevant parts of the definition of harassment are set out in Section 14:

14A. — (1) For the purposes of this Act, where — 

(a ) an employee (in this section referred to as ‘ the victim ’ ) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘ the workplace ’ ) or otherwise in the course of his or her employment by a person who is — 

(i)    employed at that place or by the same employer, 

(ii)  the victim’s employer, or 

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, 

or 

(b) without prejudice to the generality of paragraph (a) — 

(i)    such harassment has occurred, and 

(ii)  either — 

(I)             the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or 

(II)           it could reasonably be anticipated that he or she would be so treated, 

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment. 

 (7) (a) In this section — 

(i)                  references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and 

(ii)                 references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, 

(b)           being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. 

(c)            without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The respondent states that the complainant appears to have misunderstood the nature of harassment under the Act.  A more typical claim of harassment would be that set out in the claim of Ishita Sanon v Bond Personnel Group Limited ADJ0008025.  In that case the alleged harassment took the form of alleged comments about the complainant’s heritage and culture and a supposed request to change her name to a more Irish name.  The respondent states that as set out in sub paragraph 7B of Section 14A in general terms, the conduct in question which creates an intimidating, hostile, degrading, humiliating or offensive environment for the person would normally involve conduct such as acts, requests, spoken words, gestures or the production or circulation of certain material.  The respondent submits that in the within case however what the employee is complaining of is not in fact harassment but is in fact the employment practices of the Board of Management, which, as is set out above, are required and set down by the Department of Education and Skills and the provisions of the Safety Health and Welfare at Work Act, 2005. 

The respondent states that insofar as the complainant refers to “comments” made about her and/or symptoms from which she appeared to be visibly suffering, these simply do not come within the harassment rubric at all. It may be upsetting for the complainant to feel that either her superior or colleagues had observations to make about her apparent health or lack thereof in the workplace, or ability to do job as a result thereof; this does not mean that such comments amount to harassment. The respondent states on the contrary, this is input which the School is not entitled to ignore having regard to its duties to all of its staff and pupils. 

In summary, the respondent states that it is not accepted that the complainant

(i)     was subject to discrimination

(ii)    was harassed

(iii)  was “targeted” or “pursued” in the manner alleged

The respondent asserts that the complainant had a long standing issue with illness and sick leave which the School has managed in accordance with the provisions by which it is bound in the various circulars and its duties to other staff and students as well as to the complainant herself. The respondent maintains that while no reasonable accommodation case has been made in these proceedings, it must be noted that the School has gone out of its way to seek to find accommodations for the complainant and has taken particular steps to try to secure her position and well-being, these include

(i)               trying out different classes and work practices to see which might work better for her (including at her election).

(ii)              trying to get approved for critical illness (and in succeeding on one occasion) even where OHS did not recommend same.

(iii)            trying to get holiday periods discounted as sick leave to try and ensure that she maintained her sick pay.

(iv)       commissioning of and co-operation with the functional assessment with a view to  

             trying to resolve the medical dispute as to fitness to work.

Testimony of Dr B (Occupational Health Service)

Dr B gave a background to her role and details of her varied experience in her career to date.  In relation to the within claim, Dr B states that in relation to her report sent to the respondent in October 2017, it was a redacted version. Dr B states that there was some kind of IT issue where the end of her report had been chopped off but that the full version of the report was furnished to the respondent on 20 February 2018. She states that in her report with a letter dated 20 February 2018, it read …X was currently unfit to offer satisfactory service… should she respond to medical management to the extent her symptoms of mobility improve markedly in the long terms, her fitness to return to such a role should be medically evaluated…X asserts her fitness record would be improved were she permitted to attend the first two hours of days before she has to travel to outpatient appointments but accepts that neither funding or the specialised cover for her appointment day absences are readily available.” 

Dr B states that there is what is termed a “permitted disclosures call”. Dr B states that in terms of the within case, she cannot remember the last time she was dealing with a Chairperson of the Board of Management as in the majority of cases it is the Principal she would deal with. Dr. B states that the name of the referrer on the referrals she was receiving was that of the Principal. However, she noted she was getting a number of calls/messages from Brother C who wished to speak to her. Dr. B states that she telephoned Brother C and they had a discussion regarding the nature of the needs of the students and whether it was reasonably practicable to accommodate the complainant.  Dr. B states that she was told by Brother C of the difficulties in getting a supply of SNA’s in a rural environment and that they would not be able to get anyone if the complainant was leaving partway through the morning.

Dr B states that she did inform the respondent that it is unreasonable to expect the complainant , when she goes for those outpatient’s appointment to be able to guarantee she can be back the next day or to have foreknowledge of what the results of her examinations at outpatients.  Dr B states that she had an appointment with the complainant on 13 December 2017. She states that she cannot shed any light as to why there is not a separate independent referral form for this appointment. Dr B has recorded in her notes that the complainant was under the impression by the Principal that she was referred on the basis of discounting leave and was not coming to see her to deal with restrictions.  It was put to Dr. B by Counsel for the respondent that the complainant claims that the raising of issues with her hips and sweating was very hurtful to her and that the complainant stated in her evidence that Dr. B opened up to her on screen and read out an e-mail purporting to be from somebody at the School referring to hips and sweating. Dr B states she does not remember same and advised that it is not possible to suppress or permanently delete e-mails.

Dr B states that following her discussions with the complainant on 13 December 2017, it lead to her report dated 27 December. In her report in relation to work restrictions it states “X remains unfit due to multiple medical conditions, to work with the 50% of children who are wheelchair users and unfit to deal with those who are of flight risk behaviour.” Dr B states that in practical terms on the basis of what she was told and what was then explained to her in greater detail by Brother C about the cohort of children in the School and the pupils needs, she came to these conclusions. Dr B states that this was communicated to the School and then the School received her report in January 2018.

Dr B states that a note was received from the complainant’s neurologist and GP which simply stated that the complainant was fit for work. Dr B states that there are situations where a GP may feel under considerable pressure to say the person if fit for work but may not have the full information about the real world environment the person is working in.  Dr B states that she has to remain dispassionate and has to be ethical and impartial at all times.

Dr B states that given that there was an impasse and the request for a second opinion, she understands that there was a functional assessment carried out subsequently by an independent medical organisation who also concluded that the complainant was not fit for work at that juncture.

In cross examination by the complainant’s union representative relating to a question on how the referral procedure operates, Dr B gave details regarding same and stated that it would be grossly unfair of her to see somebody without a referral. The union representative put it to Dr B that the process and procedure that is set down by the Department of Education for SNA’s being referred to OHS is an online referral.

Dr B states that at the top of the referrals was the Principal’s name and details and that is why she found it very unusual to be asked to phone Brother C. Dr B states that she made a number of calls to the School in order to clarify matters and also asked why she was being requested to ring Brother C because it was unusual.

The union representative put it to Dr B that the complainant would say it is recorded in the report that she was unable to work with wheelchair users at that time but that the complainant already gave evidence that she had been at work prior to attending OHS and that she had been referred because of a mandatory referral, she was not out sick or ill and was in fact working with wheelchair users. The union representative asked Dr B was this not clarified in her discussions with Brother C. Dr B states that the discussion with Brother C related to the expansion of pupils in the School and the proportion of pupils who were wheelchair users had increased.

Dr B states that when one is doing a functional assessment, you are having to think what is humanly possible for a person. A person getting headaches and three / four hours sleep would raise health and safety considerations on a range of activities of daily living. The union representative put it to Dr B to clarify what restrictions she was referring to her in her report in October 2017. Dr B states that the complainant could not deal with extremes of need in terms of mobility and agility.

It was put to Dr B that the complainant’s condition had not changed from October 2017 to December 2017 and that Dr B identified there were restrictions that could be put in place in October 2017 but then in December she deemed the complainant unfit for work. It was put to Dr B if that change related to the conversations she had with the Principal or Chairperson of BOM, Brother C. Dr B states that she wanted pure facts and details of the cohort of pupils, where they were allocated and the feasibility to try and help the complainant if she were allocated with restrictions.

It was put to Dr B that her opinion changed in respect of the complainant from having restrictions applied in October 2017 to being unfit for work in December 2017 on the basis of the conversation she had with Brother C before Dr B produced the report in December 2017. Dr B states that she does not think so and that the change was due to the complainant’s ongoing and intractable difficulties.   

The union representative put it to Dr B that in relation to the referral that was made for the December assessment, it was made on 27 November 2017 and it refers to the discounting of days over the Summer period. It was put to Dr B that subsequent to that there was correspondence sent to her on 28 November by the School with details of what exactly they would like her to do in this assessment which related to the discounting of holidays, Dr A’s report (OHS) of 2016 and some of the recommendations he had made were included. It was put to Dr B if this would be considered normal practice.  The Union representative asked if it would be unusual for her to receive additional correspondence given that the standard operating practice is the online referral, and to receive this additional correspondence from somebody other than the referral person. Dr B states that she found it unusual that it was not the Principal she was dealing with.

It was put to Dr B given her evidence and her written report, is it the case that she would have called the Principal in mid December to advise that her report would state that the complainant would be unfit for work. Dr B agreed that she would have contacted the Principal to advise her of same and also advised the complainant on the same date.

Dr B states that it would not be standard practice for her to be receiving an additional communication by e-mail in addition to the referral that is supposed to be sent. The union representative asked Dr B if in any of the conversations with the Principal or Brother C were any comments made in relation to the complainant’s appearance in work, in carrying out tasks or anything of that nature. The union representative highlighted Dr B’s assessment which took place on 5 February 2018 which reads as follows “she was due to see her hip specialist on 22 February 2018 at her request. She believed this would be supportive of her own account of her physical fitness when she has previously confirmed that her stamina and physical fitness would preclude her from being able to meet the needs of children in wheelchairs, as she has been noted to sweat profusely and to become short of breath during manual handling tasks with them”.   Dr B states it was a long time ago and she does not recall that being said but she accepts that the complainant’s union representative has made a very fair comment based on been shown the reference in her assessment of 5 February 2018.

It was put to Dr B if it would be normal practice that employers would engage in conversations about their staff outside of the referral or the permitted disclosures call, if one met at a social event or a work event. Dr B replied that the answer to that question is a very emphatic No.     

In concluding remarks, Dr B states when it comes to an independent second opinion, that is another group of occupational medicine doctors, entirely different from the on site functional capacity assessment which they had suggested. Dr B states where there is an impasse, they would be happy to facilitate another group of occupational medicals doctors to look at the case from scratch in the interests of ethics and fair procedures.

Testimony of Brother C, Chairperson of Board of Management

Brother C spoke about the discussion which took place with Dr. A (OHS) in May 2016 at a JMB (Joint Managerial Body) Annual Conference. He stated as part of the conference there were break out sessions where guidance could be sought on various issues. Brother C stated that the background was that the Board of Management were getting concerned regarding the continuous rate of absenteeism and what its duties/obligations were in that regard. He met with Dr. A and went about a general query but Dr. A asked who are we referring to and Brother C named the complainant and Dr. A tapped the name into his laptop and pulled up the information regarding the visits of the complainant with OHS. Brother C agreed that the discretionary referral of the complainant in 2016 was prompted by his contact with Dr. A.

Brother C stated that he wrote the letter dated 14 October to the Department of Education as there was discussion at Board level of the large number of sick days of the complainant. He also referred to the increase in numbers of pupils which were attending the School. He states he got no response from the Department not even an acknowledgement of the letter. He states that in mentioning the incident regarding the incident with the child when complainant was putting on his coat; he was just concerned for the pupil and the well-being of the complainant. He states that the complainant was never disciplined in any way for this incident. It was put to Brother C that the usual rule would be the point of contact for OHS would be the Principal but in the interactions going forward from this point Brother C was the contact point. Brother C felt it a kind of duty to be supportive to the Principal as Chairperson of the Board. Brother C states that he continued to interact with OHS and corresponded with them and automatic online referrals were done by the Principal. Brother C states following an automatic referral in October the report came back from OHS and what’s ticked is “work with restrictions” and the recommendation is “In my clinical judgement, X {my emphasis} will only be able to offer service and attendance within her genuine and multiple limitations and this will continue for the foreseeable future. I have medical concerns regarding the alertness of any employee coping with three to four hours sleep in the long term and especially in view of the challenging environment and the vulnerability of children”. Brother C states that while it provides clarity it does not advise as to what is the next step.

It was put to Brother C that Dr. B in her evidence stated that she had a conversation with him in relation to her examination of the complainant before doing the report and her evidence was that specific facts in relation to pupil numbers and their requirements were discussed and he agreed with same. Brother C stated that he did not recall discussing personal traits of the complainant, including excessive sweating, issues with her hips or anything like that.

Brother C stated that the Board were wondering if Dr. A of OHS knew the requirements of an SNA in a special needs school. He further states that because all the reports came back prior to that fit for work, he and the Board were wondering then why was the absenteeism continuing. Brother C states that he never sent an email to Dr. B referring to personal traits of the complainant, including excessive sweating, issues with her hips. Brother C states that there was no intention to intimidate the complainant in relation to delivering the report following the data access request. He states that it was the final day of School before the Easter holidays and to be sure it was delivered within the 28 day timeframe, he took personal responsibility to deliver same.

Upon questioning by the complainant’s union representative, Brother C said one of the items discussed with Dr. A at the break out session of the JMB Conference was the granting of critical illness status to which the Union representative remarked that this was in February 2015 therefore the timelines do not match up.  

Brother C stated that in relation to attendance, the policy changed in September 2016 (prior to this if a staff member left at 11 am it would be regarded as a half day but this then changed to 1.30 ). He states that there was an informal arrangement amongst the staff that the Board of Management was not aware of. He states as the number of pupils enrolled in the School increased the number of SNA’s in each room was reduced from three to two and if someone had to leaved at 11 am other staff may get dissatisfied. Brother C states that it was the staff decision to change the policy/custom and practice and he understood that this was done in the context of a staff meeting. 

Brother C states that there were difficulties in getting cover/substitute when there are intermittent absences or someone leaving at 11 am.

Brother C confirmed he sent the OHS report dated 6 July 2016 containing the complainant’s medical information with his letter to the Department of Education dated 14 October 2016.

Brother C states that in relation to the online referral dated 30 April 2018, he cannot remember making an online referral and suggests that the Principal may have put his details and mobile number into the form.

Brother C states that in relation to the October 2017 assessment, he did ring Dr. B but got no answer but subsequently Dr. B returned his call and he wanted to clarify with Dr. B if OHS knew about fitness for work and the requirements of an SNA working in a severe and profound special needs school.   

Testimony of Ms. D, Principal

The Principal gave information on numbers at the school and the needs of the pupils. She highlighted the importance of continuity of care and the importance of routine to the pupils concerned. The Principal spoke about the difficulties in getting substitute SNA’s particularly in the months of January February and March which would be the height of flu season. The Principal stated that the there were instances when the complainant’s absences put a strain on the School although she fully accepts that all the complainant’s absences were genuine and necessary. She agreed that the complainant preferred to work with wheelchair users and she always accommodated the complainant in this regard.

The Principal stated that there was an informal arrangement whereby staff were allowed leave at 11 o clock and still be marked present for the half day.   

The Principal stated that the School numbers changed in 2014, 2015, 2016 and there was an increase in intake of pupils.  In 2014, nine new children were enrolled, in 2015, there were 5 new children in 2016 also 5 new children enrolled and there were 6 new children in 2017. The Principal states that the new circular for sick leave was brought in by the Department in 2014. At that juncture NABMSE (National Association of Boards of Management for Special Education) held meetings around the country to explain the new circular. The Principal stated that herself and the Deputy Principal were attending the meeting and in her naivety mentioned the local arrangement whereby if a staff member leaves at 11 am they would be regarded as present for a half day and they were advised by the Secretary General of NABMSE to cease that local arrangement as it was in breach of the rules.

The Principal stated that the reason they fixed on making the change from 11 am to 1.30 pm was on condition that all pupils were changed and comfortable so if a staff member needed to go early  they would be going at  1.30 as it would be their lunch break. She stated that technically their lunch break would be from 1.30 until 2 pm and they would be able to manage the remaining 50 minutes. In cross examination, the Principal denied that the change in the arrangement of leaving at 11 previously to now 1.30 was in any way targeted at the complainant.

The Principal stated that she did mention the incident regarding the complainant putting the coat on the child to the Chairperson of the Board in case there were any repercussions from it. She stated that there was no attempt to discipline the complainant regarding same. The Principal stated that she cannot remember informing the complainant in January 2018 that she would be going out on full pay as she said she has no control over those arrangements.

The Principal states that following the OHS assessment in October 2017, it left the School in a difficult situation because they did not know what the restrictions were. She spoke about the duty of care she has to all staff and pupils within the School.

The Principal referred to the letter dated 27 November from the Board of Management to OHS seeking clarification on the restrictions. The Principal stated there was an online referral the day before the Board’s letter issued wherein the Principal referred the complainant for consideration of discounting of Summer holidays via the online portal.

It was put to the Principal in cross examination that when the complainant went to OHS on 13 December which was the second attendance with Dr. B, both the issue of discounting of Summer holidays and the issue of restrictions were still out there and unresolved.  It was put to the Principal that the complainant stated that the Principal told her she was going for discounting. The Principal stated that in relation to the restrictions, she thought that it would be just a matter of OHS sending back clarification of what the restrictions were and she would not have expected OHS to see the complainant a second time over that.

It was put to the Principal that Dr. B in evidence stated that she rang the Principal on 14/15 December after meeting the complainant the second time and stated that she told the Principal at that stage that her report was going to state that the complainant is not fit to work. The Principal stated that she has no recollection of this conversation happening.

The Principal states that she did not receive the written report from OHS until 8 January 2019.  She states that on that day she would have contacted Brother C, Chair of Board of Management and possibly sought advice from NABMSE and contacted the insurance company who advised that she must ask the complainant to leave the School immediately as she was not insured to be on the premises.     

The Principal disputes the complainant’s contention (in relation to the independent functional assessment) that she would have stated to the complainant “that every new staff member coming through the door would be required to do the same test” in order to get the complainant to undergo this assessment. The Principal gave details of the assessment carried out by Ms. E (who was carrying out the independent functional assessment) who visited the School and reviewed the layout of the school and the roles of the staff members etc.

It was put to the Principal by the complainant’s representative if it was unusual for the Chairperson of the Board of Management to get involved directly with OHS; in response the Principal stated that this School is the only School she has been Principal of and that she found the Board of Management supportive.

It was put to the Principal by the complainant’s union representative that on the online referral form there is a detailed description of the type of work the SNA carries out in the particular classroom they work in and in relation to the complainant it read as follows: “All pupils need full assistance with all aspects of daily living and they need full assistance with all care needs. Pupils are hoisted from their wheelchairs to the changing beds, school chairs, standing frames and beds.”    It was put to the Principal that despite this the Principal still felt she needed to have a clarification discussion with OHS. The Principal stated that OHS may not understand the level of care that is required in its School.

It was put to the Principal that the manual on standard operating procedures in relation to the online referral requires that the online referral be handed to the SNA and a copy of any e-mails attaching and if she operated this practice. The Principal states that referrals can now be printed but going back in time it was not that easy to print and once she pressed send they were gone. The Principal states that she is not tech savvy and only discovered subsequently that you have to actually print them before you send them. The Principal states that nowadays it is easier to print the forms. The Principal stated had the forms been easier to print she would certainly have given them to the complainant.

The Principal confirmed that she attended the NABSME meeting sometime in 2014 when the new circular on sick leave was brought in when the secretary general of NABSME gave them a telling off regarding their local arrangement. The Principal stated that the actual arrangement did not change until 2015 as that is when the School got the biggest number of pupils in. The Principal states that she cannot remember it exactly as it was some time ago.

The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of disability in her conditions of employment and (ii) harassed the complainant in terms of section 14 of the Employment Equality Acts.  In reaching my decision, I have considered all the evidence both written and oral presented to me.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.  If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.  In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –

               "Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Disability is defined in Section 2 of the Acts:

‘‘disability’’ means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

The complainant gave details of her disability which is benign intercranial hypertension.  I am satisfied that the complainant has a disability within the meaning of the definition as set down in the Acts.

The complainant is alleging that she has suffered continual harassment by the respondent, in that, discussions took place which deviated from the correct process with regard to the disclosure of her medical information, normal procedures were bypassed, emails and correspondence were sent to the Department of Education, material was sent by the respondent directly to OHS. The Union submits that there were requests for telephone calls and requests to keep the referrals/the nature of the referrals private and confidential. It was further submitted that there were descriptions of the complainant’s appearance, comments made which were humiliating and offensive relating to her appearance, comments on her ability to carry out her duties without actually raising these directly with her.

Having considered the evidence adduced, I find that Brother C’s intervention with Dr A at a conference in May 2016 was a deviation from the normal practice and procedure. I consider this to be a serious breach in relation to the complainant’s privacy with regard to discussing issues around the complainant and her medical condition. I find that the complainant has established that she was treated less favourably than her colleagues on grounds of her disability in this regard.

With reference to the letter sent by Brother C to the Department of Education dated 14 October 2016; I find that while Brother C states in evidence he did this among other factors out of a duty of care to the complainant; upon review of said letter I do not find this persuasive. Brother C was giving information on personal private data indeed enclosing a report from OHS which is a serious breach of data protection and data privacy. I also note at the end of the letter where he requests that given the sensitive nature of the matters being dealt with, that any correspondence could be sent to his home address.  I find it noteworthy that when the complainant sought a data access request under Freedom of Information legislation, the respondent omitted to include said letter. The first occasion that the complainant got this correspondence was in the written submissions which were provided prior to the hearing.  

The Union has set out that the complainant was treated less favourably than her colleagues. In this regard, the Union representative states that from the information provided by the respondent, it would appear that there were complaints/difficulties raised with the respondent by members of staff which were never brought to the attention of the complainant and in that way the complainant was treated differently in that the policies and procedures were not applied to her. The Union representative outlined that in relation to the reference as to how the complainant interacted with a child, this matter was never put directly to the complainant or investigated in any manner. The Union cites this as another example where policies and procedures that govern the complainant’s terms and conditions of employment were not correctly applied to her.  I find based on the evidence heard that this is a valid point raised on behalf of the complainant and I consider that the complainant was treated less favourably than her colleagues in relation to how these matters were dealt with by the respondent and there was a failure of the respondent to follow the normal procedures that relate to the terms and conditions of the complainant.

The Union argues that when the job description was sent to OHS to the medical professionals for assessment, it was not the complainant’s job description as per the SNA job description or as per her contract of employment but it was a job description used by the respondent that was sent to the Department of Education to request additional staff. The Union argues that it’s the accumulation of this type of treatment that has been ongoing that amounts to harassment under the Acts. 

The complainant gave testimony to state that in relation to referrals to OHS, she would be called out of the classroom and told that she would have to go to OHS on such a day or if she was absent she would get a letter from the School to state that she was being referred to OHS on such a day. She stated that in July 2016, she met with Dr. A of OHS and they tried to come up with a solution so she would not miss so many days out of School, though she states at that time, she was allowed leave school at 11 am and that would be considered a half day. Dr A suggested that the complainant try and make her appointments for Cork for the afternoon and if she had to get a lumbar puncture done to try and get it done during Summer or Easter holidays or on annual leave time. The complainant states that she came back and spoke to the Principal about what Dr. A had suggested but within two weeks the rules had changed and now its no longer considered a half day leaving at 11 am but it was changed to 1.30 pm. The complainant states that this ruled her out as she would not make the appointments in Cork in the afternoons so would be back missing her days for appointments and that would mean another day out of school. The complainant submits that this contributed significantly to her sick leave accumulation.

With regard to the change in custom and practice/policy from leaving at 11 am (marked in for a half day) to 1.30 pm; I found the evidence of the complainant more cogent and compelling than that of the witnesses for the respondent. The Principal states that she attended a NAMBSE meeting in 2014 and got a “wrap on the knuckles” about the unwritten rule however, she states that the rule change happened at some stage in 2015 at a staff meeting. Brother C states that in his view the rule change happened in September 2016 with the intake of extra pupils. In my view, based on all the evidence heard, that information does not stack up and the timing does not align. By contrast, I found the evidence of the complainant on this matter more convincing and cogent and her clarity of the recall of events was consistent.  I requested notes of the staff meeting where the change was agreed, none were forthcoming. I also note that the complainant had no knowledge of any staff meeting where such an agreement was made.

I note from an assessment from Dr. A that he noted the complainant was at work, that she had steadily improved and identified that her absenteeism had been mainly from appointments with her consultants in Cork. While Counsel for the respondent made the point that there was little difference between the complainant’s sick leave in 2016 vis a vis 2017, it is noteworthy that Dr A’s assessment was that the complainant was steadily improving but due to the change in the arrangement (from 11 am to 1.30 pm), the complainant was now required to take a full day of absence in order to be in a position to meet with her consultants in Cork in the afternoons. Therefore, had the unwritten rule remained, the complainant would have only been required to take a half day’s leave as opposed to a full day and therefore would not have accumulated the same amount of sick leave in 2017 as in the previous year.  I consider that the complainant, in respect of being allowed to leave at 11 am in order to attend her medical appointments in Cork, was her being provided with reasonable accommodation. I find that the withdrawal of this arrangement in respect of the complainant without any consultation with her demonstrates an inference of discrimination on the disability ground.

The complainant states that when she came back in late August at the start of term, she was in the corridor chatting, the Principal was present and the complainant mentioned that she had a lumbar puncture done over the Summer holidays and within two weeks she received a letter from the Department of Education to state that her Summer holidays were no longer being paid for because she had a procedure done and was on sick leave. The complainant said she had to appeal that decision, get letters from her GP and consultants in Cork and the Department of Education’s decision was overruled and her Summer holidays were allowed. The complainant states that she is with the School over 30 years and in all that time she was aware of no process following Easter or Summer leave etc where she was requested out a health assessment form following illnesses or breakages in leave.  I note that in her assessments with OHS, Dr. A had suggested to the complainant getting her procedures done during Easter/ Summer holidays. In relation to this matter, I find that the complainant was penalised by the respondent for arranging her procedure during the Summer months. While the complainant did not seek any reasonable accommodation there is an onus on the respondent to provide reasonable accommodation in circumstances where the complainant is trying to deal with a disability which caused her to take sick leave. The Principal was the manager of that sick leave and the reporting of the matter to the Department of Education was in direct contravention of what the complainant had been advised by OHS.      

The complainant was referred back to OHS in October 2017, she was given the impression by the Principal that it concerned Dr A’s suggestions which were discussed in July or in relation to discounting of leave over the Summer but she said the latter issue was sorted out. However, when she met with Dr. B (OHS) on 24 October, issues about her hips were brought into conversation and about her excess sweating in the classroom. The complainant contends that this was the first time in all of the times she attended OHS that her hips were ever brought into conversation. The complainant said Dr. B made a comment about the way she walked and the way she limped and her excess sweating. In relation to the latter, the complainant tried to explain to her that there were quite a lot of heaters in the classroom and that she was at that stage of life where she was starting to go through the change of life. But much later she found out it was a side effect to one of the medications she was taking. The complainant states that Dr. B had to get that information from the School or management as the day she visited Dr. B she was not sweating as it was freezing cold on that particular day. Based on the testimony following the cross examination of Dr. B by the complainant’s union official, I am satisfied that comments were made by the respondent with regard to issues relating to the complainant hips and excessive sweating. I consider that an inference can be drawn in relation to the respondent trying to influence and steer the outcome of Dr. B’s assessment of the complainant.

Having considered all the evidence, I find that the complainant has demonstrated she has been treated less favourably with regard to how the online referral process to OHS was applied to her vis a vis that of her colleagues. I find that she has established that the online referral process has been compromised, in that, the respondent had deviated from the normal procedure and an inference of discriminatory treatment can be reasonably drawn from the facts in this regard. It is evident that there were numerous occasions the complainant was told she had to go to OHS but was unaware as to the reasons for said referral or indeed being informed that it was for a different reason example the discounting of Easter/Summer holidays or to discuss with Dr A ways to get procedures done and minimising absences. As an example of this, I note an email sent by the Principal to OHS requesting that the email be kept confidential : “I ask that you please treat this email confidentially as X {my emphasis} is a very dedicated member of staff and would not be happy if she felt that we have such concerns about her overall health and fitness to work.  In addition, I note that in May 2016, a non-mandatory discretionary referral was made to OHS by the School, the referral states; “I am aware that X should be referred for non-discretionary leave but I am referring her for discretionary sick leave” This referral describes several points regarding the complainant’s health. It advises how the Chairman of the Board of Management of the School met with Dr. A at a secondary school conference and disclosed medical details of the complainant to him. The referral specifically requests that Dr. A see the complainant. Based on the totality of the evidence adduced, on balance, I find that the complainant has established that normal procedures were bypassed and the referral process has been tainted and in those circumstances an inference of discriminatory treatment can be reasonably drawn from the evidence adduced. I am satisfied that an employee who did not have a disability would not have been discussed in such circumstances.

Having heard the evidence given by Dr B, I note in the first instance that she stated it was quite unusual to be dealing with a Chairperson of a Board of Management and in her experience it was the Principal that would be the point of contact. She also stated that it was the Principal who would fill in the online referrals although in the latter months prior to the complainant being determined unfit for work, it would appear that Brother C’s details were inputted on the online referral forms. In addition, Dr B gave evidence that she had a number of missed calls from Brother C which would be quite unusual. I am cognisant of the testimony of Dr B where she stated an emphatic No, in answer to a question by the complainant’s union representative as to whether or not it would be normal practice that employers would engage in conversations about their staff outside of the referral or the permitted disclosures call, if one met at a social event or a work event. Based on the totality of the evidence heard, I find that an inference of discrimination can be drawn in circumstances where normal procedures were bypassed and it is evident to me based on the various witnesses testimony heard that the respondent sought to put undue influence on OHS.  

The complainant states that the OHS report said that she was unfit to work in the three wheelchair classrooms but the complainant states that she had always worked in the three wheelchair classrooms and therefore the School would have known that the content of the report was incorrect. I find based on the evidence heard that the respondent had accommodated the complainant in her wish to work in the wheelchair classrooms therefore I find it puzzling that they did not question that element of the report when they were well aware that the complainant had and was working in the three wheelchair classrooms and that was in my view the reasonable accommodations that she had been given previously based on her disability.

The complainant states that the School suggested she undertake a Functional Capacity Evaluation test as she was informed by the Principal that every new staff member coming through the door had to do the test. The complainant states that in fact she was the only member of staff requested to take the test. The complainant asserts that there was a document sent to OHS and in a meeting with Dr. A, he produced it as the complainant’s contract of employment. It turned out that the document was compiled on each class on the basis of a submission which was sent to the Department of Education to look for extra staff. On this point, I find that this was unfair to the complainant and was carried out in a surreptitious manner by the respondent. On the basis of the evidence heard, I am satisfied that this demonstrates an inference of discrimination on grounds of disability.

The complainant states that having got her file as a result of a data access request there are various pieces of correspondence that she was not furnished with and had no knowledge of. The complainant refers to a letter sent by Brother C, Chairperson of Board of Management on 14 October 2016. I would question the bona fides of the respondent in omitting this piece of correspondence and find that it is quite telling. Upon review of said letter and subsequent interventions by the respondent, I consider that it has the hallmarks of seeking to manoeuvre the complainant out of her job. I am satisfied that this letter raises an inference of discriminatory treatment on the disability ground.

The complainant also states that she felt harassed in the context of Brother C coming to her home following her data access request for her personnel file and any data relating to her. The complainant states that it was coming up to the deadline for same and Brother C rang the doorbell. It was coming up to the Easter holidays. He rang the doorbell on a couple of occasions, she didn’t answer it and he went away but he came back after five minutes and persistently rang the bell, then he finally put the package through the letter box and left. The complainant states that she felt very intimidated by this encounter and that it was unnecessary as she could have arranged for someone to pick it up from the school.       

I am also cognisant that Dr. B gave evidence to state that she contacted the Principal in mid December 2017 to state that the School would be receiving a written report from OHS to state that the complainant is unfit for work, however the Principal has no recollection of said conversation taking place. On this matter I find the testimony of Dr. B more cogent and compelling.

Based on the totality of evidence heard, on balance I find that that the complainant has demonstrated a prima facie case of discrimination on grounds of disability. In that regard I find that the referral procedure to OHS has been compromised and tainted, there was a distinct lack of consultation with the complainant and normal procedures were bypassed. There were phone calls and written correspondence from the Chair of Board of Management, Brother C to OHS. There appears to be no online referral form in respect one of the referrals in December 2017. I can only conclude that the OHS report was influenced by oral communications and written correspondence from the School authorities including that from the Chairperson. I note that the complainant’s own Consultants had stated she was fit to attend work. I note that there was no evidence of any change in the complainant’s medical condition at that juncture so it was surprising that OHS reported that the complainant was not fit to attend work. On balance I consider that the complainant has demonstrated a nexus in relation to her treatment in her working conditions and her disability. Therefore I find that the complainant has established a prima facie case of discrimination in her working conditions on grounds of disability and this case has not been rebutted by the respondent.

In the Supreme Court judgment in Nano Nagle, in his judgment, Justice Peter Charleton stated that it is not “particularly useful to see disability as medical in nature. A person with a disability remains a person, an individual with human dignity who is required to be treated as such.” He also stated  

“the United Nations Convention on the Rights of Persons with Disabilities ratified by both the State and the EU, is part of the necessary backdrop to this appeal…State parties to the Convention have an obligation under [Article Number 27 of the Convention] to ‘safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment’ through measures such as reasonable accommodation and prohibition of discrimination.” 

I am also cognisant of the High Court decision in Delaney v Central Bank of Ireland where it was highlighted in the decision that any material given to the Doctor (Occupational Health) must be relevant and should be made available to the employee concerned. It further highlighted the requirement to ensure that at any material given to the company Doctor is relevant and is not biased.

In relation to the claim of harassment; the definition of harassment is set out in Section 14:

14A. — (1) For the purposes of this Act, where — 

(a ) an employee (in this section referred to as ‘ the victim ’ ) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘ the workplace ’ ) or otherwise in the course of his or her employment by a person who is — 

(iv) employed at that place or by the same employer, 

(v)  the victim’s employer, or 

(vi) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, 

or 

(b) without prejudice to the generality of paragraph (a) — 

(iii) such harassment has occurred, and 

(iv) either — 

(III)         the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or 

(IV)        it could reasonably be anticipated that he or she would be so treated, 

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment. 

 (7) (a) In this section — 

(iii)                references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and 

(iv)               references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, 

(d)           being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. 

(e)           without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Having carefully examined the totality of the evidence in relation to the claim of harassment, I consider that the cumulative effect of the types of treatment cited above (i.e. the intervention of Brother C at the JMC conference with Dr A (OHS), Brother C’s letter to the Department of Education, the opportunistic manner in which the complainant was referred to OHS without applying the correct processes, the calling to the complainant’s door while out on sick leave banging on her door while delivering a data access request) amounts to harassment under the Acts. I also find the manner in which the Principal reported to the Department the fact the complainant got a procedure done during the Summer based on a casual conversation in the corridor despite the fact that this was done based on the advice of OHS constitutes an act of harassment of the complainant.   Based on the testimony given, I find that the acts and conduct of the respondent in this regard had the effects of violating the complainant’s dignity and created an intimidating hostile and humiliating environment for the complainant. Based on all the circumstances in relation to the complaint of harassment I find that the complainant’s claim succeeds.

The complainant lodged her complaint on 13 June 2018 therefore the cognisable period is the 13 June 2018 to 14 December 2017. As submitted by the respondent, there must be a discriminatory act within the limitation period. The complainant was told by the Principal to leave the School immediately on the first day of term in January 2018 based on a report by OHS. Section 77 of the Employment Equality Act sets out the limitation period within which claims must be made. Section 77(5)(a) of the Act provides: “(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.” Section 77(6A) provides: “For the purposes of this section – (a) discrimination or victimisation occurs (i) if the act constituting it extends over a period, at the end of the period.”

In Hurley v County Cork VEC (EDA 1124), the Labour Court held in respect of sections 77(5) and (6A): “Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred.” In Hurley, the Labour Court also commented on section 77(5) as follows: “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

I find that there was a repeated failure on the part of the respondent to apply fair procedures in relation to the manner in which they referred the complainant to OHS. I find that the respondent’s treatment of the complainant in this regard represents ongoing discrimination. For completeness, I find that this treatment fell within the ambit of a ‘discriminatory practice’ encapsulated by section 77(6A). I am also satisfied that it fell within the ‘continuum’ covered in section 77(5).   

I find that the complainant was discriminated against on grounds of disability in her working conditions. In determining redress that is “effective, dissuasive and proportionate” I award redress of €40,000 for the effects of the discriminatory treatment.

I find that the complainant was harassed within the meaning of section 14 of the Employment Equality Acts. I find that the conduct of the respondent was egregious in nature. I award redress of €10,000 for said breach of the Acts.

I order the respondent to carry out a review of its processes and procedures to ensure they are up to date and in line with the Employment Equality Acts.

Disability, harassment, working conditions, Section 14 of the Employment Equality Acts